Rabinowitz v. Schenkman

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22-P-378 Appeals Court
JULIE RABINOWITZ vs. MARK SCHENKMAN.
No. 22-P-378.
Bristol. May 4, 2023. – November 16, 2023.
Present: Vuono, Hand, & Hodgens, JJ.
Contract, Separation agreement, Performance and breach, Implied
covenant of good faith and fair dealing. Divorce and
Separation, Separation agreement, Division of property.
Evidence, Relevancy and materiality, Guilty plea.
Practice, Civil, Judgment on the pleadings, Affirmative
defense, Waiver.
Civil action commenced in the Superior Court Department on
October 16, 2019.
A motion for judgment on the pleadings was heard by Renee
P. Dupuis, J.; a motion for reconsideration was considered by
her; and the case was heard by Jackie A. Cowin, J.
Mark Booker for the plaintiff.
Charles G. Devine, Jr., for the defendant.
HODGENS, J. To effect the gradual division of property
under a separation agreement, Mark Schenkman (husband) made
monthly payments to his former spouse, Julie Rabinowitz (wife).
After the wife tried to kill the husband, payments ceased. The
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wife filed an action for breach of contract in the Superior
Court, and the husband asserted that the wife's attempt to
murder him excused his further performance. Following a jury-
waived trial, judgment entered for the husband on the contract
claim. We affirm.
Background. The parties married in 1997 and divorced in
2013 by a judgment of divorce nisi (divorce judgment). The
divorce judgment incorporated their stipulation, which granted
the husband sole legal and physical custody of the parties' four
minor children and deferred for trial the resolution of issues
involving alimony, child support, and the division of assets.
The parties thereafter resolved those outstanding issues in a
separation agreement dated March 17, 2014, which a judge of the
Probate and Family Court approved and incorporated into an
amended judgment of divorce nisi (amended divorce judgment)
dated the same day. All child-related provisions merged with
the amended divorce judgment; the remaining provisions survived
the judgment as an independent contract. Among other
provisions, the separation agreement required the husband to pay
the wife $212,000 over five years in sixty equal monthly
payments of $3,533.33. These payments represented the wife's
share of the marital estate that stemmed from the value of the
husband's ownership of his ongoing dental practice. The
separation agreement also required the husband to maintain a
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life insurance policy to secure this property division
obligation in the event that he died before making all the
payments. The husband made the required payments over the next
seventeen months through August 1, 2015.
On August 11, 2015, the wife attacked the husband and the
parties' nine year old son with a hatchet outside the husband's
dental practice. In the pandemonium of the attack, the wife
accused the husband of ruining her "reunification plans" that
were "in the works" for the children. The husband ceased making
payments. A grand jury returned five indictments against the
wife. On December 16, 2015, the wife pleaded guilty to armed
assault with intent to murder, one count of assault and battery
by means of a dangerous weapon, one count of assault and
battery, and two counts of assault by means of a dangerous
weapon. A Superior Court judge sentenced her to two and one-
half years in the house of correction, one year to serve, the
balance suspended for ten years of probation. The husband did
not make any payments to the wife after the attack.
On October 16, 2019, the wife filed a complaint in the
Superior Court alleging breach of contract by the husband based
on his failure to make the monthly payments required by the
separation agreement. Following a jury-waived trial, the judge
found that the wife's attempt to kill the husband was "part of a
woefully misguided plan to regain custody of her children" and
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was an attempt to interfere with the husband's "buyout" of the
wife's share in the dental practice. The judge concluded that
the husband was excused from further performance of the
separation agreement because the wife's attempt to murder him
constituted a violation of the covenant of good faith and fair
dealing implicit in the separation agreement and incorporated
into the amended divorce judgment.
On appeal, the wife claims that the motion judge erred by
failing to grant her motion for judgment on the pleadings. She
also claims that the trial judge erred by (1) taking judicial
notice of the parties' custody stipulation which was not part of
the separation agreement; (2) allowing testimony regarding the
hatchet attack; (3) giving preclusive effect to her guilty
pleas; and (4) applying the covenant of good faith and fair
dealing.
Discussion. "The standard of review is well established.
The findings of fact of the judge are accepted unless they are
clearly erroneous." T.W. Nickerson, Inc. v. Fleet Nat'l Bank,
456 Mass. 562, 569 (2010). "We review the judge's legal
conclusions de novo." Id. After addressing each argument
raised by the wife, we discern no error and affirm.
1. Motion for judgment on the pleadings. The wife claims
that the motion judge erred by denying her motion for judgment
on the pleadings because the husband's answer did not deny any
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material facts and only recited "boilerplate" affirmative
defenses. We disagree. A judgment on the pleadings is
appropriate in "the rare case where the answer admits all the
material allegations of the complaint." 1973 Reporter's Notes
to Mass. R. Civ. P. 12 (c), Massachusetts Rules of Court, Rules
of Civil Procedure, at 25 (Thomson Reuters 2023). "If the
defendant pleads by denial or by affirmative defense so as to
put in question a material allegation of the complaint, judgment
on the pleadings is not appropriate" (emphasis added). Tanner
v. Board of Appeals of Belmont, 27 Mass. App. Ct. 1181, 1182
(1989). Here, the husband filed a four-page answer that
included seven affirmative defenses disputing the wife's
performance of contractual obligations and claiming that the
wife prevented him from performing his obligations. Such
affirmative defenses showed a factual dispute and "provide[d]
notice to the plaintiff[] of defenses that will be raised."
Demoulas v. Demoulas, 428 Mass. 555, 575 n.16 (1998).
Therefore, the motion judge properly denied the motion for
judgment on the pleadings.
2. Judicial notice of child custody. In her findings and
conclusions, the trial judge took judicial notice of the
parties' stipulation incorporated into the divorce judgment that
"provided that [the husband] would have sole legal and physical
custody of the [parties'] four minor children." Although the
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wife urged the trial judge in a posttrial memorandum to "take
judicial notice of records of the family court," she now
contends that the judge erred by taking notice of the
stipulation and argues that the judge should have limited her
review to the plain language of the separation agreement
regarding property division (attached as exhibit A to her
Superior Court complaint). The wife's contrary position in the
trial court bars her claim on appeal. See Adoption of Astrid,
45 Mass. App. Ct. 538, 542 (1998) ("A party may not raise an
issue before the trial court on one ground, and then present
that issue to an appellate court on a different ground"). Even
if we considered her claim, "a judge may take judicial notice of
the court's records in a related action." Jarosz v. Palmer, 436
Mass. 526, 530 (2002). Apart from judicial notice, the
documentary and testimonial evidence before the judge showed
that the husband had custody of the four children. The
separation agreement, exhibit 1 at trial, referenced the "four
children," and during the trial the wife testified that the
husband "had full custody of the children." Given this
evidence, the judge did not err by considering the husband's
custody of the four children in connection with the divorce
proceedings.
3. Motion to exclude evidence of armed assault. Prior to
trial, the wife moved to exclude all evidence related to the
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hatchet attack and argued that it was both irrelevant to her
contract claim and unduly prejudicial by casting her character
in a negative light. The judge denied the motion. On appeal,
the wife contends that the trial judge abused her discretion
because the evidence was not relevant to the husband's
obligation to pay according to the separation agreement.
"Whether evidence is relevant is a question addressed to the
substantial discretion of the trial judge, whose decision we
will not overturn except for palpable error." Kobico, Inc. v.
Pipe, 44 Mass. App. Ct. 103, 109 (1997). It is also within the
judge's discretion to decide whether the probative value of
evidence is "substantially outweighed" by the danger of "unfair
prejudice." Mass. G. Evid. § 403 (2023). The evidence here
showed that the wife attacked the husband and one of the
children with a hatchet and accused the husband of ruining her
"reunification plans" that were "in the works" for the children.
This evidence spoke to the core of the defense that the attack
was an attempt to undo the separation agreement and constituted
a breach of the covenant of good faith and fair dealing. We
discern no palpable error in the judge's determination. Also,
because the evidence addressed a "central issue[]" in the case,
the probative value "handily outweighed" any potential that the
judge might view the wife's character in a negative light. Gath
v. M/A-Com, Inc., 440 Mass. 482, 491 (2003). See Commonwealth
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v. Beaulieu, 3 Mass. App. Ct. 786, 787 (1975) ("The trial judge,
sitting without a jury, is presumed, absent contrary indication,
to have correctly instructed himself as to the manner in which
evidence was to be considered in his role as factfinder").
4. Evidence of the wife's guilty pleas. Exhibit 2 at
trial in the Superior Court included docket entries and
indictments from the wife's criminal case where she pleaded
guilty to crimes in connection with the hatchet attack on the
husband and their child. The trial judge found that "[the wife]
tried to kill [the husband] and that she did so in an attempt to
further her plans to regain custody of the children." The wife
now contends that the judge erred because evidence of the guilty
pleas is not sufficient to support the judge's finding. We
disagree. "[A] defendant's guilty plea is not without
consequence in subsequent civil litigation. The defendant's
guilty plea and any other admissions made during the plea-taking
colloquy with the judge are admissible as evidence in the civil
litigation." Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737,
750 (1985). Thus, the trial judge properly considered the
wife's guilty pleas to crimes against the husband and their
child.
For the first time on appeal, the wife next contends that
the judge deprived her of the opportunity "to explain what
occurred during the August 11 incident" that resulted in the
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indictments and subsequent guilty pleas. "An issue not raised
or argued below may not be argued for the first time on appeal."
Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol
County, N.A., 405 Mass. 420, 421 n.2 (1989). This rule is
particularly appropriate here because the wife asked the trial
judge to exclude evidence underlying the guilty pleas. In two
pretrial motions, the wife asked the judge to exclude testimony
related to the August 11 hatchet attack and any bad act
evidence. At the final pretrial hearing, the judge said,
"[I]t's a bad idea to get into exactly what happened on August
11th and I don't, and I don't need it because the only, I think
the only pertinent fact is the fact of the convictions, . . .
which I don't think would be disputed anyway." The judge then
asked the wife's counsel "how deeply we should delve into what
happened on August 11th." Counsel responded that the
convictions were "something that we wouldn't contest," and
added, "I do think that permitting testimony about what someone
said during the course of the incident, what they perceived to
have meant by the other party, I think, does jeopardize the
coherence of the trial and it threatens, I think, very, very
seriously to take us off the rails." At trial, the wife's
counsel did not attempt to offer any evidence relative to the
hatchet attack and successfully objected when the husband's
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counsel tried to broach the subject. Based on this record, the
wife's claim is waived.
5. Implied covenant of good faith and fair dealing. The
wife contends that the judge erroneously applied the implied
covenant of good faith and fair dealing to excuse the husband
from his obligation to make the monthly property division
payments required by the separation agreement and judgment. The
implied covenant, a familiar concept in "commercial situations,"
is also "applicable in the context of a marital separation
agreement." Larson v. Larson, 37 Mass. App. Ct. 106, 109-110
(1994). See Krapf v. Krapf, 439 Mass. 97, 106 (2003). That
covenant demands that "neither party shall do anything which
will have the effect of destroying or injuring the right of the
other party to receive the fruits of the contract." Druker v.
Roland Wm. Jutras Assocs., Inc., 370 Mass. 383, 385 (1976),
quoting Uproar Co. v. National Broadcasting Co., 81 F.2d 373,
377 (1st Cir.), cert. denied, 298 U.S. 670 (1936). Here, the
judge concluded that, by trying to kill the husband with a
hatchet, the wife committed a breach of the covenant of good
faith and fair dealing implied in the separation agreement. The
judge reasoned that this breach by the wife "excused" the
husband's obligation to continue making the monthly payments for
the division of the value of the dental practice. (No other
provisions of the separation agreement are at issue.)
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The wife argues that the judge's analysis is flawed because
she did not properly consider that (1) an equitable division of
property under G. L. c. 208, § 34, is not modifiable and
therefore forecloses relitigation; (2) the separation agreement
was not conditioned on postagreement conduct; (3) the wife did
not commit a breach of the implied covenant of good faith and
fair dealing; and (4) the husband failed to prove "demonstrable
harm" caused by the wife.
We disagree with the proposition that equitable division of
property under G. L. c. 208, § 34, forecloses all further
litigation on the subject. Under § 34, the rights of parties to
marital property are generally fixed by the terms of the divorce
judgment and, unlike alimony, "not subject to modification"
(citation omitted). Pfannenstiehl v. Pfannenstiehl, 475 Mass.
105, 114 n.19 (2016). Courts have, however, sometimes revisited
property division where, as here, a party claims a violation of
the implied covenant of good faith and fair dealing. See, e.g.,
Krapf, 439 Mass. at 100-102, 106-107, 110 (affirming declaratory
judgment requiring husband to pay wife amount equivalent to what
she would have received from husband's military pension under
separation agreement but for husband's breach of implied
covenant by unilaterally electing to receive disability pay in
lieu of pension); Nile v. Nile, 432 Mass. 390, 398 (2000)
(affirming judgment awarding two-thirds of deceased husband's
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trust to children of his first marriage where separation
agreement required husband to bequeath and devise two-thirds of
probate estate to children but he later transferred bulk of
estate into trust in violation of implied covenant). We see
nothing in § 34 that prohibits a court from entertaining the
contract defense raised here -- particularly where the parties
understood that their separation agreement would survive the
divorce judgment as an independent contract. On the unique
facts of this case, and considering the egregious nature of the
wife's conduct, the judge could conclude that this case
constitutes one of those rare situations that warrants
revisiting the issue of property division.
We also reject the wife's argument that the implied
covenant of good faith and fair dealing does not apply because
the separation agreement was not conditioned on postagreement
conduct. The wife contends that when the Probate and Family
Court judge approved the agreement, the approval only
contemplated statutory considerations for division of property
including "the conduct of the parties during the marriage,"
G. L. c. 208, § 34, but not conduct after the marriage. The
implied covenant of good faith and fair dealing has no such
temporal limitation. Indeed, such a limitation would lead to
absurd results where a judge could consider a wife's predivorce
solicitation to murder her husband as a factor under § 34, as in
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Wolcott v. Wolcott, 78 Mass. App. Ct. 539, 543-544 (2011), but
could not consider the same postdivorce conduct as a defense to
performance of the terms set forth in a separation agreement.
The parties here understood that the separation agreement
would survive the divorce judgment as an independent contract.
Such a contract carries significant obligations. "Parties to a
separation agreement stand as fiduciaries to each other, and
will be held to the highest standards of good faith and fair
dealing in the performance of their contractual obligations."
Krapf, 439 Mass. at 103. See Robert & Ardis James Found. v.
Meyers, 474 Mass. 181, 188 (2016) ("every contract in
Massachusetts is subject to an implied covenant of good faith
and fair dealing"); Clark v. State St. Trust Co., 270 Mass. 140,
153 (1930) ("Every contract implies good faith and fair dealing
between the parties to it"). Because separation agreements are
construed "according to established contract principles," Krapf,
439 Mass. at 103, the implied covenant of good faith and fair
dealing applies to the parties' postagreement conduct.
Whether the wife committed a breach of the implied covenant
of good faith and fair dealing was a question for the
factfinder, Chokel v. Genzyme Corp., 449 Mass. 272, 278 n.6
(2007), and we do not disturb the finding unless clearly
erroneous, Imbrie v. Imbrie, 102 Mass. App. Ct. 557, 569 (2023).
The evidence here showed, inter alia, the following: the
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parties divorced; the husband maintained sole legal and physical
custody of their four children; the parties entered into a
separation agreement, which included a structured division of
property through the husband's monthly payments to the wife
spread over five years; the separation agreement required the
husband to maintain a life insurance policy to secure these
payments in the event of his death; the separation agreement was
intended to provide an "orderly process" for the distribution of
marital property and to end the financial "stress" on the
parties; and, during the period of performance under the
separation agreement, the wife attacked the husband and the
parties' nine year old son with a hatchet and accused the
husband of ruining her "reunification plans" that were "in the
works" for the children. As this evidence showed, the
separation agreement provided the husband with a structured and
orderly process to spread his payments over five years while he
continued to earn an income from his dental practice and care
for his children, who remained in his sole legal and physical
custody. At trial, the wife acknowledged that she was "not
really comfortable with" the separation agreement. Based on the
"totality of the circumstances," T.W. Nickerson, Inc., 456 Mass.
at 570, a fact finder could conclude from this evidence that the
wife tried to thwart the consequences of the separation
agreement by killing the husband, accelerating the property
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division through the life insurance policy, and obtaining
custody of the children. A fact finder could also conclude that
the wife tried to seriously injure the husband and impair his
ability to fund the carefully structured monthly payments with
income derived from the ongoing dental practice. In the
judgment of the fact finder, such precipitous and violent
conduct could be viewed as a breach of the implied covenant of
good faith and fair dealing because the wife took some action
that will "have the effect of destroying or injuring the right
of the other party to receive the fruits of the contract."
Druker, 370 Mass. at 385, quoting Uproar Co., 81 F.2d at 377.
As a final argument, the wife contends that the husband
failed to prove all the elements of a valid defense. She argues
that the husband also had to prove that she "actually destroyed
or injured" a right or caused "demonstrable harm" such as
economic loss. Since he survived the attack, so the argument
goes, the husband suffered no real harm and should pay up. We
disagree. "[T]he purpose of the covenant is to guarantee that
the parties remain faithful to the intended and agreed
expectations of the parties in their performance." Uno
Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376,
385 (2004). "A breach [of the covenant] occurs when one party
violates the reasonable expectations of the other." Chokel, 449
Mass. at 276. A material breach by one party "excuses" the
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other party from further performance and entitles the other
party to "recover contract damages." Ward v. American Mut.
Liab. Ins. Co., 15 Mass. App. Ct. 98, 100-101 (1983). Here, in
raising affirmative defenses, including the argument that the
wife committed a breach of the covenant of good faith and fair
dealing, the husband sought only to be excused from performance;
he did not seek damages, and he did not have to prove damages
when raising the implied covenant of good faith and fair dealing
as a defense.
The focus of this defense is not on whether tangible harm
has been done but on whether a party took some action that "will
have the effect of destroying or injuring" the rights of the
other party to the contract. Druker, 370 Mass. at 385, quoting
Uproar Co., 81 F.2d at 377. Within months of striking the
bargains in the separation agreement, the wife tried to kill the
husband with a hatchet. The wife's violent armed attack, with
an admitted intent to murder the husband, could be viewed as a
desperate attempt to undo the separation agreement that was
designed by the parties to be the final step at resolving
outstanding issues in their divorce. The wife's extreme
conduct, manifestly aimed at destroying or injuring the
husband's rights that had been fixed by the separation
agreement, may be viewed as precisely the type of behavior
prohibited by the covenant of good faith and fair dealing
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because the wife tried to "recapture opportunities forgone"
(citation omitted). Anthony's Pier Four, Inc. v. HBC Assocs.,
411 Mass. 451, 473 (1991). Keeping in mind that "spouses who
enter into agreements with each other are held to standards
higher than those we tolerate in the arm's-length transactions
of the marketplace," Krapf, 439 Mass. at 103, the trial judge
could conclude that a spouse who tries to kill another spouse in
order to evade the consequences of a separation agreement does
not live up to this standard. We discern no error and limit our
holding to the conclusion that the wife's violation of the
implied covenant of good faith and fair dealing precludes her
recovery on her breach of contract claim. See Hawthorne's, Inc.
v. Warrenton Realty, Inc., 414 Mass. 200, 211 (1993).
The wife contends that applying the covenant of good faith
and fair dealing here will create a "flood of litigation
concerning allegations of post-divorce misconduct aimed at
invalidating property settlements." She argues that misconduct
ranging from a party "slapp[ing] the face of the other" to being
"habitually late in returning children" would jeopardize
property settlements. We disagree for several reasons. First,
we are unaware of any flood of litigation since the Supreme
Judicial Court expressly began applying the covenant of good
faith and fair dealing to separation agreements almost a quarter
century ago. See, e.g., Nile, 432 Mass. at 398. Second, the
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unique and admitted homicidal conduct in the present case
allowed, but did not compel, the fact finder to conclude that
such extreme conduct was sufficiently connected to specific
terms of the separation agreement so as to excuse performance.
Third, we need not "speculate" on the potential future
applications of the covenant of good faith and fair dealing
because, "on the facts before us, a finding is warranted that a
breach of the contract occurred" justifying the husband's
nonperformance. Fortune v. National Cash Register Co., 373
Mass. 96, 104 (1977).
Conclusion. We have intentionally confined this decision
to the narrow review of the judgment rendered by the Superior
Court trial judge. We do not reach potential issues that have
not been raised with respect to past or possible future
proceedings in the Probate and Family Court. After reviewing
the record, we discern no "clearly erroneous" factual finding of
the trial judge. T.W. Nickerson, Inc., 456 Mass. at 569. We
have also scrutinized, de novo, the trial judge's application of
the law to the facts and perceive no error. Id.Judgment affirmed.